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Commissioner's Directive Concerning Adjudicatory Proceedings Conducted Pursuant to M.G.L. c. 30A
1) PURPOSE.
The purpose of this Directive is to ensure the efficient, timely, and fair resolution of all adjudicatory appeals to the Department of Environmental Protection.
2) ORGANIZATIONAL STRUCTURE.
Effective immediately, the administration of the Office of Administrative Appeals (OAA) is transferred from the Office of General Counsel to the Office of the Deputy Commissioner for Administration.
3) ADMINISTRATIVE LAW JUDGES.
Administrative Law Judges (ALJs) have overall responsibility for conducting adjudicatory hearings. The ALJ will prepare and submit a recommended final decision to the Chief ALJ for transmittal to the Commissioner.
The ALJ shall sign and date his or her recommended final decision, and send a copy of his or her recommended final decision to all parties in the case within three business days after it is transmitted to the Chief ALJ. Each recommended final decision shall contain this notice following the ALJ's signature:
This decision is a recommended final decision of the Administrative Law Judge. It has been transmitted to the Commissioner for her final decision in this matter. This decision is therefore not a final decision subject to reconsideration under 310 CMR 1.01(14)(d), and may not be appealed to the Superior Court pursuant to M.G.L. c. 30A. The Commissioner's final decision is subject to rights of reconsideration and court appeal and will contain a notice to that effect. Because this matter has now been transmitted to the Commissioner, no party shall file a motion to renew or reargue this recommended final decision or any portion of it, and no party shall communicate with the Commissioner's office regarding this decision unless the Commissioner, in her sole discretion, directs otherwise.
The ALJs will use best efforts, consistent with the fair administration of justice, to complete their handling of cases within the timelines established in the Commissioner's Directive of July 7, 1995.
ALJ salaries, promotions, benefits, working conditions, case assignments, and opportunities for employment or promotion shall not be based upon whether an ALJ's rulings, decisions or other actions favor or disfavor the agency or the Commonwealth. The work of an ALJ shall be evaluated on the basis of competence, objectivity, fairness, productivity, diligence, and judicial temperament.
DEP shall not establish quotas or similar expectations for any ALJ that relate in any way to whether the ALJ's ruling, decisions, or other actions favor or disfavor the agency or the Commonwealth.
No person, whether or not a party to an appeal pending before an ALJ, or an authorized representative of one, shall initiate or conduct with an ALJ, or attempt to initiate or conduct with an ALJ, any conversation or discussion about such an appeal for any purpose whatsoever, unless that person has given reasonable advance notice of such conversation or discussion to all of the parties to the appeal, and the parties have either consented specifically to it or are present before the ALJ in person or are participating by telephone or by other means of electronic communication, arranged in advance among all of the parties, when the conversation or discussion occurs.
No person, whether or not a party to an appeal pending before an ALJ, or an authorized representative of one, and whether or not employed by the Department, shall attempt in any way to order or otherwise direct an ALJ to make any finding of fact, to reach any conclusion of law, or to make or recommend any specific disposition of any claim, issue, charge, allegation or question, except by way of a written motion made in accordance with 310 CMR 1.01.
Nothing in this section shall prohibit an ALJ from circulating a draft of a recommended final decision to other ALJs for review and comment.
4) CHIEF ADMINISTRATIVE LAW JUDGE.
The Chief ALJ, in addition to functioning as an ALJ, will manage the OAA and supervise the ALJs and the Docket Clerk. The Chief ALJ will report to the Deputy Commissioner of Administration. The Chief ALJ may give legal advice or guidance to the ALJs, as appropriate, to assure quality and to assure consistent and legally sound decisions. The Chief ALJ may also comment on the draft of a recommended final decision circulated for comment and review by an ALJ. The Chief ALJ may not order an ALJ to make any specific finding of fact, reach any specific conclusion of law, or reach any particular outcome in any case. The Chief ALJ may evaluate an ALJ only in accordance with section three of this Directive.
The Chief ALJ will transmit an ALJ's final recommended decision to the Commissioner through the Counsel to the Commissioner. The Chief ALJ shall transmit the final recommended decision to the Commissioner within three business days after the date on which the ALJ transmits it to the Chief ALJ.
5) COUNSEL TO THE COMMISSIONER.
Among other responsibilities, the Counsel to the Commissioner will advise the Commissioner on final decisions based on the ALJs' final recommended decisions and the Counsel to the Commissioner's own experience and expertise with the regulations and policies of the agency. The Counsel to the Commissioner will report to the Commissioner.
6) COMMISSIONER.
The Commissioner shall approve and sign every final decision of the agency, except where the Commissioner designates another to do so in her place. If a final decision differs from the recommended final decision, the Commissioner shall provide an appropriate statement of her reasons in accordance with 310 CMR 1.01(14)(b).
7) DOCKET CLERK.
The Docket Clerk is responsible for maintaining the docket and is the point-of- contact for inquiries regarding the status of cases. The Docket Clerk shall return to the sender, with instructions on proper filing, any written communication about a case that is addressed to an ALJ but that has not been served on all parties.
8) GENERAL COUNSEL.
Among other responsibilities, the General Counsel will oversee the activities of the litigators within the Office of General Counsel (OGC) and assume responsibility for insuring the efficient processing of appeals by OGC and that case presentations accurately and fully reflect the Department's position.
The General Counsel shall use best efforts to assure compliance by the Office of General Counsel with the July 7, 1995 Commissioner's directive.
Approved: Lauren A. Liss, Commissioner
Dated: 11/08/00 |
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